Intelligent Software Modeling, Inc.

Software License Agreement

Please read this Agreement carefully before downloading, installing, or using this product. This agreement grants the Licensee of the software ("You") the right to use this product for specified purposes. This agreement states the terms and conditions upon which Intelligent Software Modeling, Inc. ("ISM") offers or accepts Your offer to license this product and the related documentation (collectively, the "Software") to You. All use of the Software is subject to the terms of this agreement.

The Software is licensed, not sold, to You for use only under the terms of this Agreement and ISM reserves all rights not expressly granted to You. ISM retains ownership of all copies of the Software.

Definitions
1. "Agreement" means this Software License Agreement and the associated License Entitlement Certificate (defined below).
2. "Development" is developing code that links to and uses the Software either directly or through any number of Application Program Interface (API) layers. Development includes making copies of the Software in full or in part and linking or physically incorporating the copies into a Target Application. Development includes any use of the Software's programming and analysis tools, or components (classes) of the Software with an external interface, i.e. command-line, Graphical User Interface (GUI), inter-process messaging, voice, etc.
3. An "Employee" is a legal employee of the Company of the Licensee or the Company's subcontractors all of whom are under appropriate non-disclosure obligations with respect to the Software.
4. A License Entitlement Certificate ("LEC") is a separate document issued by ISM to You specifying the Project and references special terms ("Project Terms") and other details of the licenses that You are granted.
5. The "License Term" is the active period of this Agreement with respect to the LEC. It is specified in each LEC.
6. The "Licensee" is the Project manager with fiducial responsibility to the Project and the authority to enter into this agreement on behalf of the Project's Company, the legal entity owning the Project.
7. A "Project" is a funded task undertaken by an identified Development Team to design or produce a set of Target Applications that has a specified scope of functionality. The Project includes the ongoing Development and maintenance support of the Target Applications. The Project requires a Development effort.
8. A "Target Application" is a User-developed software program that requires physical incorporation or linking of portions of the Software to execute.
9. "Target End Use" is use of the Software in a Target Application to produce revenue or benefit.
10. "Target End User" is an Employee assigned to operate the Target Application for the Target End Use.
11. A "Team" is a group of Users.
12. A "User" is an Employee assigned to the Project or a Target End User who has used the Software for any purpose in the preceding six months, including to develop, test, stage, or run a Target Application.
General License Terms.
This clause applies to all licenses granted under this Agreement.
1. Licenses are non-transferable and non-exclusive.
2. Use of each license is limited to the designated Licensees and Projects for the period of the License Term, all as defined in the LEC specifying the grant.
3. For each license, You must pay ISM an annual fee schedule in accordance with ISM's published price list, or as may be specifically agreed to in writing between You and ISM. The agreed to fee schedule may be annually adjusted for inflation based on the CPI-U Urban Wage Earners and Clerical Workers, for NewYork-Newark as published by the Bureau of Labor and Statistics, https://data.bls.gov/PDQWeb/cw.
4. You may make a reasonable number of copies of the Software strictly for backup or archival purposes. Any such backup copy shall remain Licensor's exclusive property and must include all copyright or other proprietary rights notices contained in the original.
License Types:
1. Developer License
  A license that defines the number of Users that may use the Software for Development.
2. Internal-OEM Runtime Target Application License
  This license allows a Project Team to deliver the Project's Target Application to a separate, internal entity within the Licensee's Company to deploy and operate. The LEC defines the number of Target Applications that may be deployed and supported by the Project Development team. These terms apply to all such Target Applications:
  1. You must be licensed to use the Software for Development on the Project at the time of distribution of each Target Application.
  2. Unless specified in the LEC, Target Applications may not contain ISM source code.
  3. You must distribute Your Target Application to end users with a license that acknowledges ISM's copyright, prohibits Development use, prevents further copying of the Software (except for backup purposes), and expressly disclaims all warranties by ISM.
  4. ISM offers no warranty to Your end users. THE SOFTWARE, WHEN INCORPORATED INTO A TARGET APPLICATION, IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. ISM DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS.
  5. Target Applications incorporating Software granted or deployed by You under this Agreement shall terminate on the termination of this Agreement.
3. Source License
  A License to allow You to use the source code, and build object versions of the original or modified source code.
  1. If You modify the source code, then You assign and convey all of Your copyright to such modifications and derivative works to ISM.
  2. If for any reason You cannot assign Your copyright, then You grant ISM a perpetual, worldwide, non-exclusive, assignable, paid-up license to use, copy, modify, distribute, create derivative works, sublicense, and otherwise fully utilize the modifications without acknowledgment of ownership.
  3. You also assign or license to ISM any other intellectual property rights required to fully use the modifications for any purpose. You agree to provide such modifications to ISM upon request. ISM may incorporate Your modifications into any future version of the Software or into other products at its sole option without fees or attribution.
  4. If You modify the Software, then all warranties are void. Unless agreed otherwise, ISM has no obligation to support the modified Software.
  5. A Source License does not grant other rights; a Developer License is required for Development, and an Internal-OEM Runtime Target Application License is required to distribute Target Applications.
4. Evaluation License
  A license to allow You to use an evaluation or pre-production ("Experimental", "Beta" or "Early Access Release") version of the Software to;
  1. use the Software for the sole purpose of testing the suitability, performance and usefulness of the software for Your business needs.
  2. use the Software for Development of prototypes to evaluate performance and usefulness, and prototypes must remain with the Project and not be delivered to a "Target End User for Target End Use or be used by the Project for Target End Use.
Additional Restrictions
1. Except as provided herein, You may not market, distribute or transfer copies of the Software to others. You may not rent, lease, loan or otherwise provide the Software to any third parties.
2. Except as provided herein, You may not copy, modify, or create derivative works of the Software.
3. You may not reverse engineer, disassemble, or adapt the Software.
4. You may not remove any proprietary notices from the Software or the associated documentation.
5. You may not publicly disseminate information regarding the performance of the Software.
6. You may not use the Software if You are a direct competitor or acting on behalf of a direct competitor of ISM, except with ISM's prior written consent.
7. You may not use the Software for competitive purposes such as evaluating performance or functionality without ISM's prior written consent.
Limited Warranty
1. Pre-production releases of the Software are provided "as is" with no warranty whatsoever. The warranties in this section apply only to paid licenses for fully-released versions of the Software.
2. ISM warrants that the Software will perform substantially in accordance with the accompanying written materials for an installation period of ninety (90) days from the date that the Software is first downloaded by You. ISM does not warrant that the Software will meet Your requirements or operate free from error. This limited warranty gives You specific legal rights. You may have others, which vary from state to state.
3. ISM warrants that, other than license management technology which prevents application startup, the Software as well as any medium used to provide the Software will be free of viruses, worms, Trojan horses, time bombs, back or trap doors, or other debilitating or disabling devices or malicious code.
4. ISM warrants that the Software is subject to no restrictions or licenses that would require You to redistribute any of Your source code.
5. ISM warrants that it has the right to grant You the licenses herein.
6. ISM's entire liability and Your sole and exclusive remedy for any breach of the foregoing warranty shall be, at ISM's option, to either: (i) return the price paid for the Software; or (ii) repair or replace the Software. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Any such liability shall be subject to Your prompt written notification of a warranty breach.
7. THE WARRANTY, OBLIGATIONS AND LIABILITY OF ISM AND YOUR RIGHTS AND REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF, AND YOU HEREBY WAIVE AND RELEASE ALL OTHER WARRANTIES, OBLIGATIONS, REPRESENTATIONS OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW, IN CONTRACT, CIVIL LIABILITY OR IN TORT, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO A) ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND B) ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF ISM TO ANYONE OF ANY NATURE WHATSOEVER BY REASON OF THE DESIGN, IMPLEMENTATION, SALE, REPAIR, OR USE OF THE SOFTWARE OR RELATED PRODUCTS AND SERVICES DELIVERED OR RENDERED HEREUNDER OR OTHERWISE.
8. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ISM, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
9. The warranties set forth herein do not apply and become null and void if You breach any material provision of this Agreement.
LIMITATIONS OF LIABILITY
1. ISM SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL OR REPUTATION, COSTS OF COVER, OR THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE (WHETHER ARISING IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) EVEN IF ISM OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. THE LIMITED WARRANTY AND LIMITED LIABILITY SPECIFIED IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ISM AND YOU. ISM WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS.
Confidentiality
ISM considers the Software to contain valuable trade secrets of ISM, the unauthorized disclosure of which could cause irreparable harm to ISM.
1. You agree to use reasonable efforts not to disclose the Software to any third parties and not to use the Software other than for the purposes authorized by this Agreement.
2. You also agree that performance, functionality or other competitive evaluation results shall not be disclosed to third parties without ISM's prior written consent. For the purposes of this Article, Your subcontractors under appropriate non-disclosure obligations with respect to the Software shall not be considered third parties.
3. This confidentiality obligation shall continue after any termination of this Agreement.
Termination;
This Agreement will terminate when all licenses granted hereunder have reached the end of their respective License Term unless terminated due to breach. Upon termination, You agree not to use the Software for any purpose whatsoever and (except for reasonable backup archives) to destroy the Software and any copies then in Your possession or control, and (on request) certify in writing or via e-mail to ISM that the Software was destroyed.
The following provisions will survive termination of this Agreement: (a) any obligation to pay for ISM's software or ISM services rendered before termination; (b) Sections 6 (Limitation of Liability), 7 (Confidentiality) and 10 (Dispute Resolution); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose. The remedies specified in this Agreement shall be in addition to any other remedies available to ISM.
Entire Agreement.
This Agreement and the License Entitlement Certificate(s) between ISM and You constitute the complete, final and exclusive statement of the agreement between ISM and You, which supersede all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. No terms of Your purchase order nor any waiver, alteration or modification of the provisions of this Agreement will be valid unless made in writing and signed by a corporate officer of ISM.
Dispute Resolution.
This Agreement will be governed by the laws of the State of New Jersey except with regard to its choice of law rules. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in Camden County, New Jersey under the Commercial Arbitration Rules of the American Arbitration Association by one arbitrator appointed in accordance with said rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration provision.
If any provision or provisions of this Agreement are determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
ISM may assign this Agreement to an entity acquiring essentially all of the ISM's relevant business. You may not assign, sub-license, or otherwise transfer this Agreement without ISM's prior written consent.
Electronic Signatures. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties may be included in this Agreement to authenticate this writing and to have the same force and effect as manual signatures.

If You have any questions concerning this Agreement, or to contact ISM, please write or call: Intelligent Software Modeling Inc., 10 Wheelwright Lane, Cherry Hill NJ 08003; license@ism.com; +1 856.669.8335.